Any defense against legal technicalities used to arrest or harrass?
September 4, 2014 1:00 PM   Subscribe

In the moment of encounter with an authority who is making a legal claim that is a technicality or perhaps over-reaches of an intended law, is there any defense? Are you stuck until you get in front of a judge?

The Michael Brown/Ferguson Police coverage surfaced this story of a man being allegedly beaten by police and then charged with destruction of property for bleeding on their uniforms.

I have occasionally met folks who have taken pleasure in knowing legal technicalities that they suggest that police use as an excuse to harass and could be used by people to protect them from negative legal consequences in certain situations…a oft-sited one among martial artists was an assault is simply being poked with a finger and so that supposedly justifies the use of force in the situation in defense.

I also assume there is any number of laws (many old and out of date) that are left on the books that give police a tactical option to pull cars over, ask pedestrians for id, etc. I suppose in the hands of a more enlightened police officer these tactics might be useful, but they could also be misused as suggested in the case of Henry Davis above.

Any defense from this misuse of power?
posted by notatron to Law & Government (15 answers total) 4 users marked this as a favorite
Thing is, cops can always punch you and cuff you for mouthing off.
posted by entropone at 1:06 PM on September 4, 2014

For the most part that's protected by the First Amendment, but it's still no fun to get arrested, spend a night in processing, and then be released without charges.
posted by Oktober at 1:08 PM on September 4, 2014 [2 favorites]

The key to interacting with police is realizing you have a remedy in court. And there are non-profits who work to help you get relief for misuse of power.

It is important to realize that in any arrest or detention situation (two different things), the rule is always comply now, complain after.

Plus internal affairs is a good place to go. They are cops who want collars and that means collars of other cops. Having done a lot of cases with IA, I can tell you that in my extensive experience, they are not letting things go. The problem is when citizens do not complain, they cannot investigate.

larger cities also have Civilian Review Boards. One Mefite was an investigator for the NYC version of that as well. He has interesting stories. I think IA works better and faster, because officers will cooperate with IA for fear of punishment more often.

and no, you do not have the right to poke any stranger with a finger. that is an assault. Its the first thing they teach you in law school. So don't do it to the police or anyone else. Its also wrong to do it from a moral standpoint unless you cannot escape an assault from someone else.

Comply and then complain later.
posted by Ironmouth at 1:16 PM on September 4, 2014 [12 favorites]

You're really thinking about this the wrong way. If police officers studied the details and nuance of the law, they'd be lawyers, not police. The police operate off department policy, what they see other cops do, and a 50 page paperback guide they keep in their breast pocket.

Save your legal arguments for court.
posted by ryanrs at 1:19 PM on September 4, 2014 [2 favorites]

Are you stuck until you get in front of a judge?

Yes. Or a lawyer, depending.
posted by DarlingBri at 1:27 PM on September 4, 2014 [1 favorite]

Get it on tape.
posted by theodolite at 1:28 PM on September 4, 2014 [1 favorite]

You do not have any rights until a judge grants them to you. So you spend a night in jail and the cop gets paid overtime to show up at the hearing. unless you become a cause celebre, or have a Civil rights law firm on speed dial you are basically hosed.
posted by Gungho at 1:37 PM on September 4, 2014 [1 favorite]

What Ironmouth and ryanrs said.

There's no difference between a "legal technicality" and "the law." If it's on the books, it's on the books. Laypeople who don't like how things are going for them are the ones who talk about "legal technicalities."

Your lawyer may possibly be able to get a charge dismissed or reduced before trial by working with the prosecutor. You do need a lawyer in any contact with the legal system.
posted by JimN2TAW at 1:54 PM on September 4, 2014 [1 favorite]

unless you [..] have a Civil rights law firm on speed dial you are basically hosed

In my youth, I did a lot of activism, including some fairly confrontational direct action stuff. I did have a civil rights lawyer on speed dial (also sharpied on my arm). Not just some law clinic, but my own paid civil rights attorney that I regularly consulted before, during, and after events. Even then, it came down to documentation (esp video) and grudging compliance with whatever the police felt like doing. Any and all legal arguments happened long after the fact, in court.

Note that there were certain legal phrases and reasons that we would say to the police during the event. These were very useful in framing the inevitable legal arguments that would happen down the road. E.g. making it clear this was a political protest, not random chaos. But these magic words were definitely said for the benefit of the camera and the courtroom, not the specific cop we were yelling at.
posted by ryanrs at 2:27 PM on September 4, 2014 [1 favorite]

>Plus internal affairs is a good place to go. They are cops who want collars and that means collars of other cops. Having done a lot of cases with IA, I can tell you that in my extensive experience, they are not letting things go.

This very much varies from location to location.
posted by yclipse at 3:19 PM on September 4, 2014

Does legal technicality mean "broke the law but I'm a nice guy?" That phrase is used in weird ways and it's hard to understand the question without more clarification.
posted by jpe at 3:37 PM on September 4, 2014

The best way to handle police misconduct is to be compliant and courteous at the time, make as good a record as possible, and then complain to a lawyer/the judge/any police oversight organization.

Trying to argue your case to the very officer who is misusing power is completely pointless and very likely dangerous.
posted by bearwife at 4:06 PM on September 4, 2014

To comply doesn't mean to talk with cops. Know your rights. There are organizations dedicated to informing the public of their rights, especially in police encounters. Search "Am I free to go", then look for sites that are law firms or have a .org domain. Ignore discussion forums.

Warning. Sometimes cops go ballistic on citizens who are standing up for their rights, no matter how respectfully done. For examples of various kinds of outcomes: r/AmIFreeToGo on reddit.
posted by Homer42 at 7:18 PM on September 4, 2014

This whole article is about how many municipalities (in this case near St. Louis) use technicalities to ensnare the poor in an ever-escalating series of fines, fines for not paying the fines, fines for not appearing in court to pay the fines, arrest warrants for not appearing in court, court fees, etc etc etc. All these fines add up to a very significant source of revenue for the towns, all of it on the backs of the poor. It succeeds because most of the people getting fined do not have the means to afford legal representation nor the knowledge (or time) to successfully defend themselves. In some of the towns, there are many more open arrest warrants than residents! So... yeah, the system can be legally set up to screw you even up through the time you see a judge. Depressing as all get-out.
posted by wyzewoman at 8:27 PM on September 4, 2014

Comply now, complain later. Cops are trained to control the situation. Their viewpoint may broader than yours at the moment of confrontation. Or, having just arrived, they may be unaware of important things. Any resistance signals a potential scuffle, and that is a scary scenario for any cop to deal with. When they instruct you to be quiet, then shut up. If they give you directions, comply.

As noted above, the street is not the level to address the law. Recording the incident is a very good move. When you see the judge, you will show that you are making best effort to comply with the cops. This is important not only because the cop may be exceeding his mandate, but because there may be something going on that you aren't aware of. However that shakes out, resisting the cops only helps escalate the situation. Images of looters or protesters throwing things at the cops only makes it appear that they are dealing with an out of control mob.

A notable exception to immediate compliance would be if you are part of an organized group, using civil disobedience to make a point. To do this, you will have to be schooled, and practice, certain tactics; in this case, you will probably be arrested. Note that these tactics take into account such stuff as dogs, sticks, and gas. You cannot fight back on the street and make your point. Your point will be made in court, by your lawyers.
posted by mule98J at 1:09 PM on September 5, 2014

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